Burn & King, JJ.

After hearing the arguments on these miscellaneous petitions we have found it necessary to refer to a Full Bench the question whether the case of Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606) has been correctly decided.

There is no doubt about the facts. The plaintiff (a minor in O.S. No. 61 of 1936 on the file of the Subordinate Judge of Ellore) sued to recover the money due on a mortgage. The learned Subordinate Judge gave him a decree for part of the amount claimed. In A.S. No. 297 of 1938 the plaintiff appealed from this decree in so far as it disallowed part of his claim. In A.S. No. 349 of 1938 defendants 1 to 12 in the suit, who are members of the family of defendants 1 to 4, (the mortgagors) appealed against th e decree, claiming that the suit should have been entirely dismissed. On the 21st August 1941 we allowed A.S. No. 297 with costs and dismissed A.S. No. 349 with costs. C.M.P. No. 4772 is an application by the appellants in A.S. No. 349 of 1938 in which they pray that this Court may be pleased to give appropriate directions for scaling down of the debt under the decree which would now be passed in accordance with the judgment of this Honourable Court in the above appeal and A.S. No. 297 of 1938, under the provisions of the Madras Act IV of 1938 and pass such other order or orders as this Honourable Court may deem fit in the circumstances of the case. C.M.P. No. 4773 is a similar application by the same parties, the first twelve respondents, in A.S. No. 297. C.M.Ps. Nos. 4774 and 4775 are applications to stay the drafting of the decrees in A.S. Nos. 349 and 297 of 1938 pending the disposal of the other two applications for scaling down the decree debt.

It may be noted, though it is not important for the purpose of these applications, that on the 19th August 1941 the same parties (appellants in A.S. No. 349) filed an application to scale down the decree in O.S. No. 61 of 1936 on the file of the Sub Court, Ellore, under the provisions of Ss. 8 and 19 of Madras Act IV of 1938. This petition we dismissed on the 21st August 1941, the day on which we pronounced judgment in the appeals, on the ground that this Court has no jurisdiction to scale down the Sub Courts decree.

When these applications came on for hearing on the 29th August, learned Counsel for the petitioners contended that they are agriculturists entitled to the benefits of the Madras Act IV of 1938, and that the decree to be passed by the High Court has to be scaled down in accordance with the provisions of Ss. 7 and 8 of that Act. Learned Counsel for the respondent (minor plaintiff) contended that these applications filed after the judgment had been pronounced, and after the passing of Act IV of 1938, are not maintainable since S. 19 of Madras Act IV of 1938 applies only to decrees passed before the commencement of the Act. The respondent also did not admit that the applicants are agriculturists entitled to the benefits of Act IV of 1938. The objections of the respondent appear to us to have considerable weight and we put to Mr. Govindarajachari on behalf of the applicants another point, namely, that the decrees to be issued in the appeals must follow the judgments. Mr. Govindarajachari then quoted to us the case of Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606). So far as the facts appear from the report that case was in essence similar to this. The only difference is that in that case the plaintiffs suit was dismissed by the trial Court, and consequently there was no decree of any kind against the defendants. The plaintiffs appeal was allowed and then for the first time a decree had to be passed against the defendants. At that point (apparently after the judgment in the appeal had been pronounced) an application was made on behalf of the 4th respondent und er Ss. 7 and 8 of the Madras Agriculturists Relief Act to scale down the debt. The learned Judge held that the application was one which ought to be admitted and which must be enquired into. The order which they made was as follows:

In accordance with the usual practice, the application will be remitted to the Court below for disposal according to law after due enquiry, and the decree in the appeal will be subject to the final order thereon.

This decision was based upon the consideration of the fact that it was only after the judgment was pronounced in the appeal that any necessity could arise for making an application to scale down the debt. The learned Judges said it was not reasonable to expect a party to put in an application which might never be necessary, and it could not, they thought, be said that the omission to make an application before the judgment was pronounced debarred the petitioner from making the application as early as possible after the judgment was pronounced, and before the decree was actually drawn up. They thought that it would be going against the spirit of the Act to dismiss applications for relief which the Legislature meant to give to debtors on such a purely technical ground as the fact that there was no particular provision made in the Act for making applications for scaling down under Ss. 7 and 8 of the Act.

It does not appear from the judgment that the learned Judges considered the provisions of S. 33 and O. 20, Civil Procedure Code. S. 33 says The Court, after it has been heard, shall pronounce judgment, and on such judgment a decree shall follow. O. 20, R. 6 provides that the decree shall agree with the judgment. R. 7 of O. 20 provides that the decree shall bear date the day on which the judgment was pronounced and R. 3 of O. 20 provides that the judgment shall be dated and signed by the Judge in open Court at the time of pronouncing it and, when once signed, shall not afterwards be altered or added to, save as provided by S. 152 or on review. These rules of O. 20 do not apply to this High Court in the exercise of its ordinary or extraordinary Original Civil Jurisdiction, but they do apply to this High Court in the exercise of its appellate jurisdiction. With all respect to the learned Judges who decided the case of Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606) it appears to us that in view of these provisions of the Civil Procedure Code it is not permissible, after the High Court has pronounced judgment, to refer to a subordinate Court for disposal an application for the scaling down of the debt which is the subject of the High Courts judgment. It has never been suggested that the rules of O. 20 which we have quoted are other than mandatory. We can see no escape from the conclusion that once the judgment of the High Court has been pronounced, the decree must be in accordance with the judgment, and if the judgment declares that a certain amount is due from the judgment-debtors no subordinate Court can be allowed to hold an enquiry and to say as a result of that enquiry that something less than the amount found due by the High Court in its judgment, shall be embodied in the decree as the amount due from the defendants. It is also, we think, with respect, contrary to all principle to allow that the decree of this Court shall be modified in accordance with the decision of a subordinate Court.

It is of course clear that the only decrees which can be scaled down under the provisions of Madras Act IV of 1938 are decrees passed prior to the commencement of the Act (Vide: S. 19). It has been expressly stated also in the decision in Kottayya v. Venkata Punnayya (1940) 2 M.L.J. 202 = 52 L.W. 176). In that judgment it has been pointed out that any one who wishes to claim the benefits of Madras Act IV of 1938 in a suit which is pending, must put forth his claims before the decision is pronounced, and the learned Judges have expressed the view (with which we respectfully associate ourselves) that having regard to the expropriatory nature of the provisions, Courts should watch with a jealous eye attempts to have the scope of the Act extended, under colour of interpretation, beyond what its terms expressly warrant. The plea on behalf of the applicants is that while the decree of the lower Court was in force (that being a decree for a sum much less than was claimed by the plaintiff) they had no necessity to apply for the scaling down of the debt. That may very well be true, but it cannot affect R. 3 of O. 20 which says that the only way to get a judgment modified is by an application for review.

Our attention has been drawn to the decision in Perianna v. Sellappa (I.L.R. (1939) Mad. 218 = 48 L.W. 954). The principal question there decided was that it was not the intention of the Legislature to limit the relief under Madras Act IV of 1938 to cases where a person was personally liable, and that a purchaser of the equity of redemption, if he himself was an agriculturist, could claim the benefits of the Act. It is not however clear from the report whether any question was reserved in the judgment with regard to the liability of the judgment-debtors, and the report does show that the terms of the decree to be finally passed were settled by the learned Judges of this Court, and were not left to the determination of a subordinate Court. That case therefore gives no support to the practice which is said to exist of sending down such application as this to subordinate Courts for disposal and of modifying this Courts decrees in accordance with the findings of such subordinate Courts. Such a practice appears to us, with all respect, to be contrary to all principle and, if it exists, we are of opinion that it should be stopped. We may also refer to the case of Kannabhiran Pillai v. Govindaswami Pillai (1940) 2 M.L.J. 473 = 52 L.W. 413) where Wadsworth, J. held that an application made to a lower Court to scale down the appellate Courts decree was not maintainable. It appears in that case that the appellate Court in its judgment had made a reservation in the following words this judgment will not preclude the defendants from applying to the lower Court for scaling down the debt under the provisions of Madras Act IV of 1938 if they are entitled to have such relief. Wadsworth, J. expressed the view that in that case the proper proced ure was for the petitioner to apply to the appellate Court to have the decree brought in accordance with the judgment by embodying a direction to the trial Court to deal with the application for relief under Act IV of 1938 and amend the decree according to its decision. We have already stated our objections to the view that a subordinate Court can be permitted to amend a decree of this Court.

With reference to the applications to stay the drafting of the decrees in the appeals we are of opinion that we have no power to order such stay. Judgment having been pronounced the decree must follow, and as was observed by the learned Judges in Kedar Nath Goenka v. Maharaja Chandra Mauleswar Pershad Singh Bahadur (11 Pat. 532) after the judgment has been pronounced and it has been signed and sealed, no power is left in the Court to alter it or add to it or subtract anything from it; and the judgment having been pronounced a decree must be prepared in accordance with it.

Since we are clearly of opinion that the decision in Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606) requires reconsideration, we refer to a Full Bench the question whether it has been rightly decided.

OPINION

The question which has been referred is whether Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606) was rightly decided by this Court. The judgment was pronounced by Pandrang Row and Krishnaswami Ayyangar, JJ. sitting as a Divisional Bench. After the judgment had been pronounced an application was made on behalf of the 4th respondent by his mother, who was his guardian, for an order under Ss. 6, 7 and 8 of the Madras Agriculturists Relief Act scaling down the debt. The Act had not been pleaded at any stage before the appeal was heard and decided. The reason was that when the suit was dismissed by the trial Court, the Act had not come into force, and the claim was allowed only when it came before this Court on appeal. On the footing that it would be contrary to the spirit of the Agriculturists Relief Act not to give the judgment-debtor the benefit of the provisions of the Act the learned Judges passed this order:

We are therefore of opinion that the application is one which ought to be admitted and which has to be enquired into. In accordance with the usual practice the application will be remitted to the Court below for disposal according to law after due enquiry, and the decree in the appeal will be subject to the final order thereon.

In making this reference Burn and King, JJ. have expressed strong dissent with regard to the propriety of this course. They have pointed out that once a judgment has been delivered the consequent decree must be drawn up in accordance with the terms of the judgment and no subordinate Court has power to pass an order which will affect the decree. We consider that there is great force in the criticisms which the learned Judges have made with regard to the course adopted in Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606). The learned Judges obviously had no power to make any order which affected the judgment which they had delivered unless passed on an application for review and there was no application for review. They added something to their judgment which is prohibited by the Code of Civil Procedure, and we have no hesitation in holding that the course adopted in that case is contrary to law.

If the mother of the 4th respondent in Somasundaram Chettiar v. Karuppan Chettiar (51 L.W. 606) had raised the question before judgment was pronounced and signed, the position might perhaps have been different. It has been the practice of some learned Judges of this Court, where an application for scaling down has been made before judgment has been delivered, to direct that an inquiry into the application should be conducted by the trial Court and the amount awarded in the judgment should be deemed to be subject to the finding on the application. It is not necessary to decide whether this practice is lawful or not, but to avoid any question arising in future, we consider that the proper course will be to reserve the final order until the application for scaling down has been decided. All questions arising in the appeal other than the question of scaling down can be decided and the decree left open until a report has been received from the trial Court, the application for scaling down being remitted to that Court for inquiry and report. If this procedure is followed the final decree of this Court will state exactly what the judgment-debtor has to pay, bearing in mind all that he is entitled to under the Agriculturists Relief Act. But if the application is not made before the judgment is delivered, it will be too late for a judgment-debtor to raise the question. The judgment in such circumstances will be the final judgment and the decree must be drawn up in accordance therewith.

The costs of this reference will be costs in the matters which have occasioned it.

These Civil Miscellaneous Petititions coming on for hearing after the expression of the opinion of the Full Bench in pursuance of the order of the High Court dated 8th September 1941 the Court (Burn and King, JJ.) made the following

ORDER

(3-10-41)

In view of the decision of the Full Bench on the reference made by us, these petitions must be dismissed with costs. (One set).